Judge Theresa M. Traber, Case BC716646 2023-04-24 Tentative Ruling

Judge: Theresa M. Traber, Case: BC716646, Date: 2023-04-24 Tentative Ruling

Case Number: BC716646 Hearing Date: April 24, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 24, 2023 TRIAL DATE: NOT SET

CASE: Sergio Proa v. Kia Motors America, Inc.

CASE NO.: BC716646

MOTION FOR ATTORNEY’S FEES, COSTS, AND EXPENSES

MOVING PARTY: Plaintiff Sergio Proa

RESPONDING PARTY(S): Defendant Kia Motors America, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was a lemon law action filed on August 6, 2018. In the operative First Amended Complaint, filed November 22, 2018, Plaintiff alleged that he purchased a new 2011 Kia Optima which had serious engine defects. Plaintiff alleges multiple violations of the Song-Beverly Consumer Warranty Act and fraudulent omission by Defendant in concealing the engine defects.

Plaintiff now moves for an award of attorney’s fees, costs, and expenses pursuant to a settlement.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses is GRANTED in part in the amount of $117,480.38 in fees plus $7,386.73 in costs.

DISCUSSION:

Plaintiff moves for an award of fees, costs, and expenses in the total amount of $131,271.57.

Plaintiff’s Requests for Judicial Notice

Plaintiff requests that the Court take judicial notice of a series of 34 orders approving awards of attorney’s fees in unrelated lemon law actions in both California and federal court. These orders are not relevant to the question of whether the award of fees and costs sought in this case is proper. Accordingly, Plaintiffs’ requests for judicial notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Evidentiary Objections

Defendant objects to the Declaration of Payam Shahian in support of the Motion for Attorney’s Fees. Plaintiff objects to the Declaration of Ani Tomolyan in support of the Opposition to the Motion. Neither party cites any authority requiring the Court to rule on evidentiary objections in the context of a Motion for Attorney’s Fees, as opposed to a Motion for Summary Judgment (Code Civ. Proc. § 437c(q).) To the extent that any of the evidence on which the parties rely is relevant to the Court’s ruling, the Court will take the pertinent objections into account in evaluating that evidence.

Declaration of Sepehr Daghighian

Plaintiff’s Exhibit List attests to a declaration of Michael Rosenstein with three attached exhibits. (Exhibit List.) However, no such declaration was filed with the Court. In lieu of these documents, Plaintiff instead provided a declaration from Sepehr Daghighian, also Plaintiff’s counsel, dated January 9, 2023, but served April 19, 2023. This declaration contains exhibits whose titles suggest they are the same exhibits identified in the Exhibit List. (Declaration of Sepehr Daghighian ISO Mot. Exhs. A-C.) As Defendant has not objected to the missing declaration, the Court exercises its discretion to construe this declaration as a replacement for the missing filing and will consider the declaration on its merits.

Entitlement to Fees

Plaintiff seeks an award of attorney’s fees, costs, and expenses pursuant to a settlement agreement reached by the parties. Plaintiff brought claims for violation of the Song-Beverly Consumer Warranty Act (Civ. Code § 1790 et seq.) and for fraudulent omission.

Civil Code section 1794(d) states:

If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.

On August 3, 2022, Plaintiff signed an offer to compromise under Code of Civil Procedure section 998 to repurchase Plaintiff’s vehicle for $32,500. (Declaration of Zavig Mkrdech ISO Mot. Exh. 8 ¶ 1.) The offer provided for an award of reasonable attorney’s fees to Plaintiff by noticed motion pursuant to Civil Code section 1794(d). (Id. ¶ 5.) The parties agree that Plaintiff is the prevailing party. (Id.)

Reasonableness of Fees

Plaintiff requests a total fee award of $120,980.38, based on a total of $73,667.50 in fees accrued by Strategic Legal Practices, APC, and $13,355.00 in fees accrued by California Consumer Attorneys, P.C., plus an additional $30,457.88 resulting from a 1.35 multiplier, plus $3,500 in anticipated fees to prepare a reply brief and attend the hearing on this motion. (Declaration of Payam Shahnian ISO Mot. ¶¶ 72.)

Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10), (c)(5)(B).) In actions that are based on a contract, “where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract… shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code § 1717(a) [emphasis added].) A recovery of attorney’s fees is authorized even in noncontractual or tort actions if the contractual provision for fee recovery is worded broadly enough. (See Code Civ. Proc § 10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993 [agreement to award fees based on outcome of “any dispute” encompasses all claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160.)

Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney’s fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

1. Base Fee Requests

Plaintiff has provided an itemized list of the attorney and paralegal time billed in connection with this case by both SLP and CCA. (Shahian Decl. Exhs. 35-36; Daghighian Decl. Exh. A.) SLP billed a total of 175.50 hours in connection with this case at hourly rates ranging from $325 to $610 per hour. (Id. Exh. 35.) CCA reportedly billed a total of 25.3 hours at rates ranging from $500 to $650 per hour. (Daghighian Decl. Exh. A.) Attorney Shahian attests to the skills, training, experience, and hourly rates of SLP’s attorneys as their supervisor, and to the veracity of SLP’s time entries. (Shahian Decl. ¶¶ 41-67, 69.) Similarly, Attorney Daghighian, as a partner at CCA attests to his own skills, training, experience, and hourly rates, as well as those of his associate, Brian T. Shippen-Murray, and his senior partner, Michael Rosenstein. (Daghighian Decl. ¶¶ 2-5.) The Court also observes that, notwithstanding the length of time spent on this case, that Plaintiff’s counsel has exercised billing judgment, assigning research and drafting tasks to associates and junior partners, and reserving more strategic and editing pursuits to senior partners charging higher rates. (See generally Exhs. 35-36.)

Although Defendant identifies numerous entries that it contends are “block billing,” “vague,” “duplicative,” or “excessive time,” Defendant offers no evidence supporting these contentions beyond a conclusory assertion that they are so. (See Tomolyan Decl. Exh. A.) Defendant’s contentions that many of Plaintiff’s documents and motions are “boilerplate” is similarly unsupported.

Defendant also argues that portions of Plaintiff’s fee requests are improper because Plaintiff is not entitled to an award of fees on his fraud claim, and that Plaintiff has not separated the fees and costs incurred with respect to that cause of action from his Song-Beverly claims. The Court of Appeal has expressly rejected this argument in the context of fraud claims in a lemon law action. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) The fraud and Song-Beverly claims in this action arose from a common factual nucleus and need not be separated out in Plaintiff’s fee request.

Based on the foregoing, the Court concludes that Plaintiff’s unmodified fee requests were reasonably incurred and appropriate for use as the lodestar for Plaintiff’s fee award, with the exception of the request for anticipated fees in the amount of $3,500. The Court does not think it appropriate to award fees not actually incurred.

2. Fee Multiplier

Plaintiff requests that the lodestar be enhanced by a multiplier of 1.35, which would result in an additional award of $30,457.88. Plaintiff contends that this multiplier is reasonable considering the contingent nature of this action, Plaintiff’s counsel’s experience and knowledge, the difficulty of this litigation, and the favorable result achieved for Plaintiff. Multipliers for successful representation on a contingency basis have frequently been awarded. (See, e.g., Santana v. FCA US LLC (2020) 56 Cal.App.5th 334, 352.)

Defendant argues that the Court should not only decline to award a positive multiplier but actually award a negative multiplier because this case was “a garden-variety Song-Beverly lawsuit” (opposition p.16:2) that “involved a handful of depositions, basic boilerplate written discovery, and no significant law and motion.” (Tomolyan Decl. ¶ 23.) Defendant’s contention is belied by the record in this case which reflects five years of litigation, demurrers, motions in limine, and a motion for summary judgment involving substantial evidentiary production. Indeed, Defendant settled this case within a month of losing comprehensively on its motion for summary judgment. In the Court’s view, prosecuting such a case through motions practice and preparations for trial shows legal representation that embraces risk despite the contingent character of receiving fees, such that a multiplier on the fee award is proper.

The Court therefore concludes that an award of $117,480.38 is proper in this case.

Costs

Plaintiff also seeks an award of costs in the amount of $10,291.19.

A prevailing party on a Song-Beverly claim may also seek to recover costs reasonably incurred, as well as attorney’s fees. (Civ. Code § 1794(d).) Once a request for costs is properly challenged, the burden shifts to the propounding party to demonstrate why such costs are recoverable and proper. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1113.) Costs are normally sought by way of a memorandum of costs pursuant to California Rule of Court 3.1700(a). However, as Defendant consents to determination of costs via this motion, the Court will exercise its discretion to do so.

Plaintiff included an itemized list of costs with SLC and CCA’s itemized billing records. Shahian Decl. Exhs. 35-36.) Defendant objects only to one item dated 2/28/21 titled “Expense paid to International Litigation Services for Data Hosting 2/28/21” in the amount of $2,904.46. (See Shahian Decl. Exh. 35, see also Tomolyan Decl. Exh. A.) Defendant contends that this item is duplicative of costs incurred in a separate case for storage of documents relating to Defendant’s Theta II engine, which the parties stipulated to use across multiple cases, including this one. In reply, Plaintiff states that this cost item is not duplicative. Rather, Plaintiff contends that “there is a different billing date in each case for which this storage is billed given that Plaintiff counsel has been storing these arguments with ILS for several years.” (Reply p.10:16-17.) Plaintiff provides no evidence supporting this statement and, as Plaintiff bears the burden of justifying these costs, the lack of a sworn declaration attesting to the veracity of this statement is fatal to this request.

The Court will therefore award Plaintiff reduced costs in the amount of $7,386.73.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses is GRANTED in part in the amount of $117,480.38 in fees plus $7,386.73 in costs.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: April 24, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.